Statement on 11th Circuit Action Resize

The Irony of DOJ’s Overreach

DSC_0208 (2)This week, the Obama Administration finds itself defending not one but three extremely serious, possibly history-making, constitutional violations by high ranking officials over the past year. Fortunately, President Obama has assured us that he has very little knowledge about any of these slip-ups and was not actually aware of any of them — the failures in Benghazi, profiling by the IRS, and serious intrusions of First Amendment freedoms by the U.S. Department of Justice. White House Spokesman Jay Carney has assured us that the President had “no knowledge” that DOJ sought to obtain telephone records of the Associated Press and that it would be “wholly inappropriate” for him to comment further on the issue.

For Attorney General Eric Holder, backpedaling away from the actions of the Justice Department is nothing new.  On Tuesday, the Attorney General tried to distance himself from his department’s controversial decision to subpoena two months of telephone records from AP executives and journalists, some of which were from home and cell phones of individual journalists. Holder explained to the media on Tuesday that he recused himself from the investigation of a leak related to a 2012 counterterrorism operation in Yemen and pointed to Deputy Attorney General James Cole as the person responsible for the decision to subpoena the records.

You may remember James Cole from his nomination process. President Obama first nominated Cole for the position of Deputy Attorney General in May 2010, but because of his divisive resume, Senate Republicans blocked a confirmation vote throughout the rest of that year. President Obama re-nominated Cole through a recess appointment in December 2010 and he was confirmed in June 2011. Cole was disfavored by Republicans on a number of fronts, but predominantly because of his unorthodox views on terrorism which he laid out in a 2002 article entitled, “A Prosecutor Must Protect Rights of All.” In that article, Cole expressed the belief that the September 11th attacks were criminal acts of terrorism against a civilian population, not acts of war, and should be categorized no differently than the bombing in Oklahoma City by Timothy McVeigh.  Cole opined that the United States has faced many forms of devastating crime, from drug trade to organized crime to rape and child abuse, and that while the acts of Sept. 11 were horrible, “so are these other things.”

In his new role, Cole seems to be taking the threat of terrorism a bit more seriously than a typical crime. So seriously, in fact, that he seems to have had no problem trampling the First Amendment last May in the interest of national security by obtaining all records that could be relevant to the department’s investigation of the leak. The real irony here lies in the fact that Cole penned a detailed criticism of intelligence overreach following 9/11, noting that that the Attorney General of the United States is “one of the major bulwarks against excess and abuse in the administration of justice.” Referring to then-Attorney General Ashcroft, Cole wrote:

The attorney general justifies much of his agenda by pointing to the ‘war on terrorism’ and saying that it is an extreme situation that calls for extreme actions. . . . We want Attorney General Ashcroft to be an aggressive advocate for our country. We want him to be effective in the fight against terrorism, as well as in the fight against all forms of crime that harm our country. We also want him to be a protector of the rights, liberties, freedoms that make this country the envy of the world. Only by doing both will he truly fulfill his important role as the lead prosecutor for the United States.

For years the Obama Administration has lambasted President George W. Bush for not properly guarding the constitutional rights of U.S. citizens as he led the nation’s response to 9/11. Back then, we were a nation so clearly caught off guard by the attacks of that day that it seemed justifiable for our intelligence and law enforcement community to do whatever it took to thwart any further attacks. Now, nearly 12 years later, our officials have had the luxury of time to review these procedures and rein them in where appropriate. To the dismay of many of his supporters, President Obama has not drastically altered his approach to intelligence gathering from that of George W. Bush, despite the continued criticism of the past administration’s overreach. After DOJ’s latest blunder came to light early this week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) has said that he is “very troubled” by allegations that the Department went after such private information and Senate Majority leader Harry Reid (D-NV) said that he would “have trouble defending” what the Justice Department did, calling the actions “inexcusable” and “wrong.”


Perhaps this story has also helped uncover what seems to be the prevailing belief within the Department—that our Constitution is only worth defending when the Obama Administration says it is.

If we have learned anything this week, it is that wrongdoing by a government agency headed by a member of the President’s cabinet is never carried out in a vacuum, no matter how big the government grows. The head of the Justice Department is the Attorney General who not only answers to the President, but carries out the policies and directives of that President. Perhaps this story has also helped uncover what seems to be the prevailing belief within the Department—that our Constitution is only worth defending when the Obama Administration says it is.


Katherine Robertson serves as senior policy counsel for the Alabama Policy Institute (API). API is an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at katheriner@alabamapolicy.org.

Note: This column is a copyrighted feature distributed free of charge by the Alabama Policy Institute (API). Permission to reprint in whole or in part is hereby granted, provided the author(s) and API are properly cited.

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